II 

112TH CONGRESS 

1ST SESSION S. 913 

To require the Federal Trade Commission to prescribe regulations regarding 

the collection and use of personal information obtained by tracking the 

online activity of an individual, and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

MAY 9, 2011 

Mr. ROCKEFELLER introduced the following bill; which was read twice and 

referred to the Committee on Commerce, Science, and Transportation 

A BILL 

To require the Federal Trade Commission to prescribe regulations regarding the collection and use of personal information obtained by tracking the online activity of an 

individual, and for other purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Do-Not-Track Online 

5 Act of 2011’’. 


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1 SEC. 2. REGULATIONS RELATING TO ‘‘DO-NOT-TRACK’’ 

2 MECHANISMS. 

3 (a) IN GENERAL.—Not later than 1 year after the 

4 date of the enactment of this Act, the Federal Trade Com5 mission shall promulgate— 

6 (1) regulations that establish standards for the 

7 implementation of a mechanism by which an indi8 vidual can simply and easily indicate whether the in9 dividual prefers to have personal information col10 lected by providers of online services, including by 

11 providers of mobile applications and services; and 

12 (2) rules that prohibit, except as provided in 

13 subsection (b), such providers from collecting per14 sonal information on individuals who have expressed, 

15 via a mechanism that meets the standards promul16 gated under paragraph (1), a preference not to have 

17 such information collected. 

18 (b) EXCEPTION.—The rules promulgated under para19 graph (2) of subsection (a) shall allow for the collection 

20 and use of personal information on an individual described 

21 in such paragraph, notwithstanding the expressed pref22 erence of the individual via a mechanism that meets the 

23 standards promulgated under paragraph (1) of such sub24 section, to the extent— 

25 (1) necessary to provide a service requested by 

26 the individual, including with respect to such service, 


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1 basic functionality and effectiveness, so long as such 

2 information is anonymized or deleted upon the provi3 sion of such service; or 

4 (2) the individual— 

5 (A) receives clear, conspicuous, and accu6 rate notice on the collection and use of such in7 formation; and 

8 (B) affirmatively consents to such collec9 tion and use. 

10 (c) FACTORS.—In promulgating standards and rules 

11 under subsection (a), the Federal Trade Commission shall 

12 consider and take into account the following: 

13 (1) The appropriate scope of such standards 

14 and rules, including the conduct to which such rules 

15 shall apply and the persons required to comply with 

16 such rules. 

17 (2) The technical feasibility and costs of— 

18 (A) implementing mechanisms that would 

19 meet such standards; and 

20 (B) complying with such rules. 

21 (3) Mechanisms that— 

22 (A) have been developed or used before the 

23 date of the enactment of this Act; and 

24 (B) are for individuals to indicate simply 

25 and easily whether the individuals prefer to 


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1 have personal information collected by providers 

2 of online services, including by providers of mo3 bile applications and services. 

4 (4) How mechanisms that meet such standards 

5 should be publicized and offered to individuals. 

6 (5) Whether and how information can be col7 lected and used on an anonymous basis so that the 

8 information— 

9 (A) cannot be reasonably linked or identi10 fied with a person or device, both on its own 

11 and in combination with other information; and 

12 (B) does not qualify as personal informa13 tion subject to the rules promulgated under 

14 subsection (a)(2). 

15 (6) The standards under which personal infor16 mation may be collected and used, subject to the 

17 anonymization or deletion requirements of sub18 section (b)(1)— 

19 (A) to fulfill the basic functionality and ef20 fectiveness of an online service, including a mo21 bile application or service; 

22 (B) to provide the content or services re23 quested by individuals who have otherwise ex24 pressed, via a mechanism that meets the stand25 ards promulgated under subsection (a)(1), a 


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1 preference not to have personal information col2 lected; and 

3 (C) for such other purposes as the Com4 mission determines substantially facilitates the 

5 functionality and effectiveness of the online 

6 service, or mobile application or service, in a 

7 manner that does not undermine an individual’s 

8 preference, expressed via such mechanism, not 

9 to collect such information. 

10 (d) RULEMAKING.—The Federal Trade Commission 

11 shall promulgate the standards and rules required by sub12 section (a) in accordance with section 553 of title 5, 

13 United States Code. 

14 SEC. 3. ENFORCEMENT OF ‘‘DO-NOT-TRACK’’ MECHANISMS. 

15 (a) ENFORCEMENT BY FEDERAL TRADE COMMIS16 SION.— 

17 (1) UNFAIR OR DECEPTIVE ACTS OR PRAC18 TICES.—A violation of a rule promulgated under sec19 tion 2(a)(2) shall be treated as an unfair and decep20 tive act or practice in violation of a regulation under 

21 section 18(a)(1)(B) of the Federal Trade Commis22 sion Act (15 U.S.C. 57a(a)(1)(B)) regarding unfair 

23 or deceptive acts or practices. 

24 (2) POWERS OF COMMISSION.— 


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1 (A) IN GENERAL.—Except as provided in 

2 subparagraph (C), the Federal Trade Commis3 sion shall enforce this Act in the same manner, 

4 by the same means, and with the same jurisdic5 tion, powers, and duties as though all applicable 

6 terms and provisions of the Federal Trade 

7 Commission Act (15 U.S.C. 41 et seq.) were in8 corporated into and made a part of this Act. 

9 (B) PRIVILEGES AND IMMUNITIES.—Ex10 cept as provided in subparagraph (C), any per11 son who violates this Act shall be subject to the 

12 penalties and entitled to the privileges and im13 munities provided in the Federal Trade Com14 mission Act (15 U.S.C. 41 et seq.). 

15 (C) NONPROFIT ORGANIZATIONS.—The 

16 Federal Trade Commission shall enforce this 

17 Act with respect to an organization that is not 

18 organized to carry on business for its own profit 

19 or that of its members as if such organization 

20 were a person over which the Commission has 

21 authority pursuant to section 5(a)(2) of the 

22 Federal Trade Commission Act (15 U.S.C. 

23 45(a)(2)). 

24 (b) ENFORCEMENT BY STATES.— 


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1 (1) IN GENERAL.—In any case in which the at2 torney general of a State has reason to believe that 

3 an interest of the residents of the State has been or 

4 is threatened or adversely affected by the engage5 ment of any person subject to a rule promulgated 

6 under section 2(a)(2) in a practice that violates the 

7 rule, the attorney general of the State may, as 

8 parens patriae, bring a civil action on behalf of the 

9 residents of the State in an appropriate district 

10 court of the United States— 

11 (A) to enjoin further violation of such rule 

12 by such person; 

13 (B) to compel compliance with such rule; 

14 (C) to obtain damages, restitution, or other 

15 compensation on behalf of such residents; 

16 (D) to obtain such other relief as the court 

17 considers appropriate; or 

18 (E) to obtain civil penalties in the amount 

19 determined under paragraph (2). 

20 (2) CIVIL PENALTIES.— 

21 (A) CALCULATION.—Subject to subpara22 graph (B), for purposes of imposing a civil pen23 alty under paragraph (1)(E) with respect to a 

24 person that violates a rule promulgated under 

25 section 2(a)(2), the amount determined under 


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1 this paragraph is the amount calculated by mul2 tiplying the number of days that the person is 

3 not in compliance with the rule by an amount 

4 not greater than $16,000. 

5 (B) MAXIMUM TOTAL LIABILITY.—The 

6 total amount of civil penalties that may be im7 posed with respect to a person that violates a 

8 rule promulgated under section 2(a)(2) shall 

9 not exceed $15,000,000 for all civil actions 

10 brought against such person under paragraph 

11 (1) for such violation. 

12 (C) ADJUSTMENT FOR INFLATION.—Be13 ginning on the date on which the Bureau of 

14 Labor Statistics first publishes the Consumer 

15 Price Index after the date that is 1 year after 

16 the date of the enactment of this Act, and an17 nually thereafter, the amounts specified in sub18 paragraphs (A) and (B) shall be increased by 

19 the percentage increase in the Consumer Price 

20 Index published on that date from the Con21 sumer Price Index published the previous year. 

22 (3) RIGHTS OF FEDERAL TRADE COMMIS23 SION.— 

24 (A) NOTICE TO FEDERAL TRADE COMMIS25 SION.— 


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1 (i) IN GENERAL.—Except as provided 

2 in clause (iii), the attorney general of a 

3 State shall notify the Federal Trade Com4 mission in writing that the attorney gen5 eral intends to bring a civil action under 

6 paragraph (1) before initiating the civil ac7 tion. 

8 (ii) CONTENTS.—The notification re9 quired by clause (i) with respect to a civil 

10 action shall include a copy of the complaint 

11 to be filed to initiate the civil action. 

12 (iii) EXCEPTION.—If it is not feasible 

13 for the attorney general of a State to pro14 vide the notification required by clause (i) 

15 before initiating a civil action under para16 graph (1), the attorney general shall notify 

17 the Federal Trade Commission imme18 diately upon instituting the civil action. 

19 (B) INTERVENTION BY FEDERAL TRADE

20 COMMISSION.—The Federal Trade Commission 

21 may— 

22 (i) intervene in any civil action 

23 brought by the attorney general of a State 

24 under paragraph (1); and 

25 (ii) upon intervening— 


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1 (I) be heard on all matters aris2 ing in the civil action; and 

3 (II) file petitions for appeal of a 

4 decision in the civil action. 

5 (4) INVESTIGATORY POWERS.—Nothing in this 

6 subsection may be construed to prevent the attorney 

7 general of a State from exercising the powers con8 ferred on the attorney general by the laws of the 

9 State to conduct investigations, to administer oaths 

10 or affirmations, or to compel the attendance of wit11 nesses or the production of documentary or other 

12 evidence. 

13 (5) PREEMPTIVE ACTION BY FEDERAL TRADE

14 COMMISSION.—If the Federal Trade Commission in15 stitutes a civil action or an administrative action 

16 with respect to a violation of a rule promulgated 

17 under section 2(a)(2), the attorney general of a 

18 State may not, during the pendency of such action, 

19 bring a civil action under paragraph (1) against any 

20 defendant named in the complaint of the Commis21 sion for the violation with respect to which the Com22 mission instituted such action. 

23 (6) VENUE; SERVICE OF PROCESS.— 

24 (A) VENUE.—Any action brought under 

25 paragraph (1) may be brought in— 


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1 (i) the district court of the United 

2 States that meets applicable requirements 

3 relating to venue under section 1391 of 

4 title 28, United States Code; or 

5 (ii) another court of competent juris6 diction. 

7 (B) SERVICE OF PROCESS.—In an action 

8 brought under paragraph (1), process may be 

9 served in any district in which the defendant— 

10 (i) is an inhabitant; or 

11 (ii) may be found. 

12 (7) ACTIONS BY OTHER STATE OFFICIALS.— 

13 (A) IN GENERAL.—In addition to civil ac14 tions brought by attorneys general under para15 graph (1), any other officer of a State who is 

16 authorized by the State to do so may bring a 

17 civil action under paragraph (1), subject to the 

18 same requirements and limitations that apply 

19 under this subsection to civil actions brought by 

20 attorneys general. 

21 (B) SAVINGS PROVISION.—Nothing in this 

22 subsection may be construed to prohibit an au23 thorized official of a State from initiating or 

24 continuing any proceeding in a court of the 


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1 State for a violation of any civil or criminal law 

2 of the State. 

3 SEC. 4. BIENNIAL REVIEW AND ASSESSMENT. 

4 Not later than 2 years after the effective date of the 

5 regulations initially promulgated under section 2, the Fed6 eral Trade Commission shall— 

7 (1) review the implementation of this Act; 

8 (2) assess the effectiveness of such regulations, 

9 including how such regulations define or interpret 

10 the term ‘‘personal information’’ as such term is 

11 used in section 2; 

12 (3) assess the effect of such regulations on on13 line commerce; and 

14 (4) submit to Congress a report on the results 

15 of the review and assessments required by this sec16 tion. 

Æ 


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